The following was produced by Hamish Birchall.
Q: Who needs a public entertainment licence (PEL)?
A: Anyone organising any public performance of live music virtually anywhere. Without first obtaining a PEL from their local authority they could face a criminal prosecution. Venues affected could include village halls, schools, hospitals, libraries and so on.
Q: Does that mean even a piano recital in your own home could be illegal?
A: Yes, if the public were invited to attend.
Q: What is the penalty?
A: Unlicensed live music is a criminal offence. The maximum penalty is a £20,000 fine and six months in prison.
Q: Is amateur performance exempt from the PEL requirement?
A: No. It is immaterial whether or not performers are paid, or whether admission is free or conditional upon payment of an entry fee. The PEL fee may be waived, however, if the event is for a charitable or educational purpose.
Q: When is an entertainment 'public'?
A: Unfortunately the legislation that defines public entertainment does not define the term public. Case law is therefore the only guide. In Gardner v Morris (1961) it was determined that the number of members of the public that were present was irrelevant. The test was whether any 'reputable' member of the public could gain entry! Broadly speaking if a member of the public could gain entry without discrimination, by payment or otherwise, then the event would be public.
Q: Are any exemptions allowed?
A: Yes, performances that are:
part of a religious service;
in a place of public religious worship (outside London); on Crown land;
by up to two 'performers' in on-licensed premises (bars, restaurants etc).
Q: What about private members clubs?
A: It is possible to avoid the necessity of a PEL by setting up a private members club. However this can be complicated, so it would be a good idea to get legal advice. For example, if alcohol is on sale on the club premises formal registration must be made to the magistrates court so that a hearing can consider all aspects of the club formation (a minimum required number of members, rules, committee structure etc). This is not an easy option. If alcohol is not to be sold on the club's premises formal registration is not necessary. However it is advisable to set up the club with membership forms, committee, membership list etc, if only to reassure a local authority that it is properly constituted (in case they threatened action on the basis that a particular event was public). But this is not the end of the story. You need to check whether your local authority has adopted the Private Places of Entertainment Act 1967 – if they have, you would need to obtain a different type of formal licence!
Q: If I were to play a guitar in my local pub, and use backing tapes to get around the two musician rule, is that OK?
A: No. Combining even one live musician with any form of 'recorded sound' is illegal in such premises without a PEL. The term 'recorded sound' would also include minidisc. Even MIDI technology, almost universal in modern electronic instruments, is counted as 'recorded sound' by some local authorities.
Q: How many on-licensed premises have PELs?
A: There are about 111,000 on-licensed premises in England and Wales, including all pubs. Only 5% actually hold annual PELs.
Q: Do members of the public count as 'performers' if they participate by singing along during a performance in these premises?
A: Yes, many local authorities interpret the law in this way. They cite case law precedent from 1793 (Clarke v Searle) to support this position.
Q: Does that mean more than two people singing could be a criminal offence in over 100,000 pubs, bars and restaurants?
A: For the licensee - yes, particularly if it was advertised as a regular activity.
Q: What if I engaged one musician and invited different singers to 'do a turn'. Provided only two were performing at any one time, would that be OK?
A: Not according to London borough councils. They argue that only the same two performers should be allowed throughout the course of an entertainment in on-licensed premises. However, a recent case (London Borough of Southwark v Sean Toye, Inner London Crown Court, 9 April 2001) came down against that strict reading of the 'two-in-a-bar rule'. Southwark has subsequently changed its enforcement policy so as to allow more than a total of two performers, provided only two perform at any one time. Westminster, Islington and Camden, however, have indicated that they will not change their 'no more than the same two performers' interpretation. This particular issue was only one element of the case, the other being the question whether MIDI constitutes 'recorded sound' for the purposes of the law. Southwark argued that it does, thereby requiring a PEL if a live singer performs along with it (no combination of live and 'recorded sound' being allowed under s 182.1 of the Licensing Act 1964 - without a PEL). Southwark won that argument, and Mr Toye has appealed. The appeal will now go to the Divisional Court as a 'case stated' - no date has yet been fixed. This appeal may also lead to a review of Inner London Crown Court's decision about 'no more than two performers in total'. Interestingly, Mr Toye's defence is funded by the manufacturer of the karaoke equipment that uses MIDI technology.
Q: Does a pub need a PEL for any form of recorded sound or satellite television?
A: No - provided no live musicians play at the same time.
Q: What the rationale for PELs?
A: To ensure public safety, minimise public disturbance and the potential for crime and disorder - reasonable enough, on the face of it. Regulation is certainly necessary for events that might become dangerously overcrowded, noisy or boisterous. But for premises that already count as 'workplaces', like bars, restaurants and hotels, PELs duplicate existing public safety provision under separate legislation. In Scotland, for example, where exactly the same health and safety legislation applies to workplaces as in England, no PEL is required for live music in pubs during permitted hours. Across the UK external noise is also separately regulated, whether it emanates from a neighbour's hi-fi, a pub or a factory [Environmental Protection Act 1990, Noise and Statutory Nuisance Act 1993, Noise Act 1996, Town and Country Planning Acts can impose noise conditions on premises]. Public order outside premises is the responsibility of the police, and, under the Criminal Justice and Police Act 2001, new provisions will enable the police or a local authority to apply for a court order to close licensed premises in the interests of public safety and to prevent disturbance arising from excessive noise.
Q: What is the Government doing to reform PELs?
A: It has proposed radical reform of both liquor and public entertainment licensing, and accepts that there is duplication of existing legislative provision for public safety etc. A White Paper (Time for Reform: Proposals for the Modernisation of our Licensing Laws) was published in April 2000. It proposed to end public entertainment licensing as a separate licensing regime. All venues which serve or sell alcohol or provide any entertainment to the public would be required to obtain a 'premises licence'.
The local council will become the licensing authority, and would decide the conditions to be imposed on those activities and on the premises itself, including the opening hours. Local residents and interest groups, such as musicians/promoters, will - in theory - also have a say. Recent comments from the DCMS suggest that local authorities 'would be obliged to consider favourably' plans for entertainment activities. Conditions imposed would be based solely on 'disorder, safety or nuisance factors'. Future licence fees will be centrally set in banded levels, but there will still be scope for local variation. There is, predictably, much debate about the precise fee levels, and the formulae that will be used to calculate them. The White Paper proposed fees that would be considerably lower than many currently set by local authorities. But the Local Government Association is lobbying vigorously to retain the local, discretionary fee structure and for higher fees than those proposed in the White Paper. It is worth noting that in Scotland, licensees do not have to pay anything above the cost of a liquor licence to provide entertainment, whether live or recorded (although noise conditions will be imposed on entertainment beyond permitted hours).
Behind the scenes debate will continue until the Government publishes a new licensing Bill, at which time a Regulatory Impact Assessment concerning licence fees will also be made available to Parliament. The entertainment industry's level of concern about inconsistency in local authority PEL fees led to the publication last year (at the same time as the White Paper) of Home Office Circular 13/2000. This was a formal warning to local authorities that overcharging for PELs could be 'ultra vires', and a warning not to impose, in its words, 'excessive' conditions. It appears, however, that local authorities have taken little notice of the Circular. Most London borough councils, for example, have since increased their PEL fees in line with inflation. Both the licensing White Paper and the Circular are available on the DCMS website: www.culture.gov.uk.
Q: When will new licensing legislation be introduced?
A: A new licensing Bill was promised just before the General Election, but it was dropped from the Queen's Speech. The Department for Culture, Media and Sport, responsible for licensing since 8 June this year, is now saying that legislation will be introduced 'as soon as Parliamentary time permits'. In the meantime it has suggested that it may consider issuing further guidelines to local authorities